Abstract
This article examines the relative roles of legal formalism and legal realism in the development of the English law of torts, with particular reference to the evolution of privacy protections as a case study. The common law is inherently mutable, and adherence to formalist principles is argued to be the key to striking a balance between developing the law in a manner that is fit for purpose, yet also coherent and capable of being navigated. Rather than contrasting legal realism with legal formalism, these schools of thought can function synergistically to preserve both the certainty of the law and its ability to respond to novel challenges. Unfortunately, English courts have not always succeeded in striking the right balance in this regard, sometimes leaping over established rules rather than developing the law coherently on their basis. By way of example, this is most evident in the haphazard development of privacy law following the introduction of the Human Rights Act 1998 (‘HRA’). Such incoherence can be avoided by demonstrating greater reverence for broadly formalistic ideals, such as analogising more closely with pre-existing precedent.
Introduction
The English law of torts is unique in that it is not so much a singular and coherent set of laws as it is a collection of sub-doctrines that receive diverging judicial treatment. This is understandable as the discrete heads of liability that compose tort law have developed to meet changing social and economic needs over centuries. The judicial approach to a lay person’s claim for injury will be underpinned by consideration of principles such as public safety or corrective justice, whereas the negligent appraisal of financial results by a professional accountant will more likely raise questions of commercial certainty and economic workability. It follows that the priorities of tort law, and the judicial approach to its administration, will vary according to the particular cause of action being pursued. It is here that judicial reasoning diverges into two principal schools of thought – legal formalism and legal realism. This work opens by briefly describing the difference between the two, suggesting that legal realism takes precedence in the mind of English judges. It then proceeds to explore the merits of formalistic reasoning and its place within tort jurisprudence. To that end, it considers the relationship between legal formalism and the common law, suggesting that the former manifests subtly under the label of ‘narrow incrementalism’. It is then argued, by reference to the law of privacy, that formalist thought, channelled through the prism of narrowly incremental legal development, plays a key role in tempering the malleable nature of the common law.
A Rejection of Strict Formalism
At the outset, it should be emphasised that the judicial role is not a monolithic one. There is a particular set of constitutional demands on judges when interpreting legislative instruments, including the convention of judicial obedience to Acts of Parliament in England.1 Much lesser are the restrictions on judicial discretion when the courts are left to their own devices in the development of the common law. Here, obedience to established legislative rules is replaced by a mere mindfulness of established precedent. The courts engage in the loose exercise of reaching a consensus inter se. The manner in which such a consensus is achieved can usually be labelled as either ‘formalist’ or ‘realist’.
Formalism has been defined largely by its critics.2 Generally, a formalist is said to ‘derive the outcome of a case from premises accepted as authoritative’.3 What is understood to be authoritative is the expressed legal doctrine or ‘rule’,4 to which adherence is paramount.5 Judicial discretion is frowned upon and consideration of any factor extrinsic to legal doctrine is heretical. This, however, is a stance that the legendary American jurist Oliver Wendell Holmes Jr. has described as ‘[putting] the cart before the horse’.6 He deconstructs the traditional formalist contention that the law is somehow immune to extrinsic factors like social, economic, or political reality, or even judicial bias. This is exemplified by a practice as ordinary as any – the implication of terms within a vague contract. By what standard are such terms implied, he asks. It must be a subjective one, a personal judgement as to the practices of a social class, or the wider objectives of public policy.7 It follows that, at its core, realism asks the judge to peek beyond the expressed legal doctrines to examine the social and economic reality within which the law is applied.
It is difficult to superimpose the pure view of formalism onto the common law, as the latter’s very nature is suggested to stand in stark contrast to formalist ideals. The common law is often recognised as being largely determined by ‘notions of public policy’.8 Indeed, the eminence of realist thought is readily demonstrable across tort law. For example, the judiciary has long voiced concerns over ‘defensive practices’ following a potential imposition of liability. Such was the case of Hill v Chief Constable of West Yorkshire.9 At issue here was a claim in negligence against the West Yorkshire police force, occasioned by its failure to capture a notorious murderer before he killed the claimant’s daughter. Lord Keith held, inter alia, that it is valid to consider how ‘imposition of liability [on the police] may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind’.10 This sort of reasoning is unacceptable to a pure formalist since it would imply a subjective value judgment as to the social consequences of the decision, rather than exclusive consideration of legal doctrine.
The same approach is evinced by the diverging treatment of claims for negligence occasioning pure economic loss. In Caparo Industries plc v Dickman (‘Caparo’),11 a company’s auditors produced a negligent audit report. A passive shareholder relied on this report in its decision to acquire control of the company, and eventually suffered a substantial loss. On these facts, the auditor’s liability in negligence was confined only to existing shareholders for investment monitoring purposes, and it could not be relied on for the purposes of increasing their shareholding. However, this decision sat uneasily with its contemporary – Smith v Eric S Bush (‘Smith’).12 Here, the claimant suffered economic loss after purchasing a house from a building society in reliance of a negligently prepared survey commissioned by the building society. The surveyors were liable to the house buyer because they would have known that their valuation would be relied upon for the purposes of acquisition. The courts thus emphasised the ‘purpose’ for which the statements could reasonably be relied on as a factor limiting the scope of liability.13 In Caparo, the audit was being produced for shareholders to monitor their investment, and in Smith, the survey was produced for a house acquisition. That was also the extent of the class of potential claimants to whom a negligent party would be liable.
However, the above distinction, based on the purpose of the statement, is suggested to be inconsistent with the more recent case of Scullion v Bank of Scotland plc (‘Scullion’),14 where on facts similar to Smith, the surveyors were held to not be liable to the buyer. The distinction was made on the basis that the property was being acquired as an investment, rather than for residential purposes. This exposes the judges’ true priority in these situations – the economic context of the transaction. Instead of considering the purpose of making the statement, which was to verify the value of the property to a buyer, the court examined the purpose of the buyer. As such, Scullion cannot be reconciled with Caparo or Smith. The latter two cases limited the duty of care to the class of representees to whom the statement was made out (current shareholders and house buyers, respectively). Following this precedent formalistically would demand that the buyer in Scullion be owed a duty as well, as he was buying the surveyed property in much the same manner. The only way to reconcile these three cases is by looking beyond the ‘rule’ and at the real-world context of the transactions.
It is standard market practice for parties engaging in commercial transactions to carry out their own due diligence checks and negotiate at arm’s length. This includes incurring the costs of commissioning one’s own verification mechanisms to confirm a prospective investment’s viability, whether it be a company or a buy-to-let property. However, such a practice is not usual where a property is being purchased in one’s capacity as a consumer in a non-commercial context. To accommodate this, a duty of care is imposed, as in Scullion. In this string of decisions, the courts applied a single legal doctrine in differing ways, despite all these cases involving the same basic elements – a negligent statement made by a third party which is relied on by an acquirer. The reason for this dissonant treatment lies in extraneous factors, namely public policy and market practice. The purpose of making the statement (the formal rule), taken on its own, was not as influential as the social or economic reality within which the statement was made (the context).
It follows from the foregoing analysis that pure formalism is, at large, impracticable within the English common law. The common law judge’s role cannot be bound in the way strict formalism would demand, hence why ‘a formalist utopia is doomed to failure’.15 In light of this, reference to formalist thought within the remainder of this article should be taken to mean a mere judicial inclination towards championing the broadly formalistic jurisprudential principles of certainty, continuity, and objectivity in rendering judgments. In that vein, what follows is an account of the usefulness of these formal concepts within the law of tort, and the ways in which they manifest.
A Place for Formalist Ideals?
The preceding discussion has dispensed with any chance of characterising common law adjudication in England as properly formalistic in nature. However, the author seeks by no means to assert that the underlying principles of formalist dogma are absent from the common law, or that they are not useful. The present state of the law is indeed heavily informed by the formal principles of certainty and adherence to precedent. Often, these are considered alongside wider public policy evaluation, meaning judicial decision-making is tempered by a spectrum of impulses on which both formalist and realist ideals feature.
The concepts of wide and narrow incrementalism, as identified by Mullender and Dolding, are instrumental in understanding how the common law reconciles notions of formalistic certainty with aspirations of realistic flexibility. They view incrementalism as articulating ‘rules which are, at once, new (and, hence, can properly be regarded as the fruit of judicial law-making) and yet are conditioned by pre-existing law’.16 They identify wide incrementalism as being characterised by a seeming lack of necessity to ‘bring the facts of [a] situation within those of previous situations in which a duty of care has been held to exist’.17 Narrow incrementalism is instead summarised as a preference that ‘the law should develop novel categories of negligence incrementally and by analogy with established categories [of case]’.18
It is thus argued that wide incrementalism is strongly in line with legal realism, dismissing the requirement of harmonisation of the factual matrices of two separate cases. What matters, then, is that the underlying principles of the law are upheld. These principles are devoid of legal content in themselves and must be populated by a judge’s subjective understanding of what they entail. Contrastingly, narrow incrementalism insists on the closeness of fact between two cases if a precedent is to be applied. Failing that, the creation of novel legal rules is to be left to the legislator. This is the closest the common law can get to pure formalism. Such an approach can preserve the law’s coherence, though it is not ‘receptive’ to novel factual scenarios, in the words of Mullender.19
The current approach to establishing a duty of care in negligence is something of a hybrid of narrow and wide incrementalism. The UK Supreme Court set out this reconciliatory approach in Robinson v Chief Constable of West Yorkshire (‘Robinson’),20 which invites the court to apply precedents tightly if they exist. However, if the situation is novel, the judiciary is to apply common law principles by analogy and should consider policy justifications for the imposition of a novel duty of care on the facts at hand.21 Bennett considers this encouragement to apply broad principles and policy considerations to be a ‘hallmark of wide incrementalism’,22 overcoming the formalistic impulse of insisting only on narrowly applicable precedent. He further points out that this has led to the establishment of novel areas of liability, such as a duty of care in providing first-aid equipment ringside at a boxing match.23 However, it is argued that Bennett’s analysis is only half of the story. The courts, according to Robinson, should resort to broader considerations only where a closely analogous rule does not exist. As such, the approach should be properly seen as twofold. The starting point is one that appears concerned with the consistent application of the formal rule so as to preserve certainty within the law. Where the formal route is inadequate, however, the court should be welcomed to justify the setting of a novel precedent by reference to what is economically workable and morally defensible.
Following from the discussion above, it is suggested that the proposition that formalist ideals are squarely opposed to legal realism should be dispensed with. The two ideologies are more appropriately viewed as tools to be employed in different contexts. Looked at in this way, the question of whether formalism is indeed over or underused becomes irrelevant. Instead, its virtues should be championed where they are beneficial and are to be suppressed where they are unhelpful. Identifying where this is the case is an altogether different question – one whose answer may only become obvious in hindsight. The final part of this work precisely examines one such example, where the ideals of legal certainty and doctrinal coherence were tossed aside in a decade-long developmental spree.
How Unbridled Realism Compromised the Coherence of Privacy Law
The state of the law of privacy presents a useful case study of the consequences of dispensing with legal formalism. Though different areas of tort law are often subject to unique considerations, it is suggested that the effective balancing of form and context remains vital. The introduction of the European Convention on Human Rights (‘ECHR’) in the UK thrust upon the courts the difficult task of incrementally developing tort law to provide relief for infringement of an individual’s Article 8 right to privacy. Unfortunately, this development has been difficult to make sense of.
Prior to the introduction of the HRA, claimants who suffered an invasion of privacy could not directly claim in court for redress; the common law did not recognise a general right to privacy.24 Horsey and Rackley explain that English tort law had created ‘boxes’ of liability, outside of which no claim could be found.25 This did not, however, mean that claimants previously had absolutely no recourse. In rare cases, individuals could rely on the equitable doctrine of confidence to protect private information. Originally, the doctrine was meant to ease the protection of trade secrets and it required that the information be confidential in nature, that it be communicated in circumstances importing an obligation of confidence, and that there be an unauthorised use of it.26 These requirements could be stretched to protect private information as well. For example, in Stephens v Avery, the doctrine of confidence operated to keep one’s sexual orientation confidential.27
With the introduction of the HRA, ECHR rights became horizontally enforceable between private claimants.28 The judiciary was thus obligated to afford due protection to the privacy rights of individuals. At first, a narrow incremental approach was employed in the case of Douglas v Hello! Ltd.29 At issue here was an invasion of privacy occasioned by a photographer stealthily taking a photograph of a private wedding. The Court of Appeal (‘CA’) brushed aside the contention that the HRA had created a new cause of action and settled on confidence. It argued that the photographer needed to take the photograph covertly, and could thus be taken to have had notice of the confidential nature of the event.
However, the doctrine of confidence remained a proverbial square peg that could not fill the round hole of privacy protection as required by the HRA. This was brought to the fore in the seminal case of Campbell v MGN (‘Campbell’),30 which concerned pictures taken of a model undergoing rehabilitation for drug addiction after she had publicly denied engaging in substance abuse. The story associated with the pictures was allowed to run by virtue of correcting the concealment of her habit, though the pictures themselves amounted to an intrusion into her private life.
In rendering the judgment, Lord Hoffmann dealt the first blow to legal certainty in this area. He considered that the doctrine of confidence had ‘firmly shaken off the limiting constraint of the need for an initial confidential relationship’ and it had, as such, ‘changed its nature’.31 Interestingly, he also labelled the cause of action in question a ‘tort’ of ‘misuse of private information’ (‘MPI’).32 The test for this tort is also foundationally different, requiring a claimant to demonstrate a ‘reasonable expectation of privacy’, following which a court would balance the degree of intrusion with the public interest in disclosure (if any).33 Lord Hoffmann’s judgment here is suggested to amount to a very wide incremental development. In transplanting privacy protection from the doctrine of confidence into the new tort of MPI, he also imbued it with novel characteristics such as a need to factor in the public interest. Regardless of the substantive merits of extending privacy protection in this manner, this remains a tort which, when created, was not at all informed by the pre-existing position and is very much akin to legislating from the bench.
What followed was a period of conflicting judgments from which no consensus could be distilled on whether this new cause of action was a separate ‘tort’ or if it had simply been absorbed into the doctrine of confidence.34 Finally, the time came for the courts to answer this question in Vidal-Hall v Google (‘Vidal-Hall’),35 where the CA came to the determination that confidentiality remained separate from MPI.36
Looked at holistically, the sudden morphosis of privacy protection in Campbell (from equitable to tortious in nature) was not founded on any pre-existing legal principle. The judiciary seems to have recognised the incoherence that a merger (as it appeared at the time) of the doctrine of confidence and MPI would have caused, and thus retreated somewhat hastily to the position manifested in Vidal-Hall (segregating MPI from the doctrine of confidence completely). On this view, it is suggested that the initial mutation of the doctrine of confidence into the tort of MPI in Campbell amounted to a poorly reasoned and overly wide incremental addition to the law, which abandoned formal ideals completely.
By way of contrast, Bennett suggests that, if anything, the decisions in Campbell and Vidal-Hall demonstrate a timid judiciary that did not dare disrupt the status quo by applying the broad brush of wide incrementalism.37 He justifies this by pointing out that, by the time Vidal-Hall had to be considered, it was in no way ‘radical’ to conclude that MPI exists as a tort in its own right – it was one possible rationalisation of the (confusing) position at the time. Despite being an overdue clarification, Bennett identifies the judgment as an unsatisfactory and overly formalistic one, citing its failure to go far enough in explaining ‘how, as a matter of formal law, [MPI] came into being.’38 This is indeed supported by an early privacy case, Wainwright v Home Office, where the court expressed a preference that the development of privacy law be left to Parliament.39
It will be conceded that the Vidal-Hall decision is restrictive, confirming little more than the mere existence of a separate tort of MPI. However, the source of the confusion is suggested to be the judgment in Campbell. Based on no pre-existing doctrine, the House of Lords (‘HL’) materialised unprecedented substantive modifications to the privacy protections available at common law, but also conflated them in form. This author believes that Campbell represented an unprincipled development of the law as it stood at the time – the reasoning of the HL surrounding the apparent transformation of the doctrine of confidence has left much to the imagination. This is perhaps understandable, as the HRA introduced foreign dogma which was not previously recognised at common law. It is perhaps the case that a lack of timely Parliamentary legislation forced the judges into an untidy enunciation of privacy principles.
Developing the law so as to match its social and political context is key to its efficacy. However, as this discussion highlights, doing so without reference to the pre-existing rules upon which that development is founded has dire implications for the law’s certainty. A lack of certainty can, in its own way, limit the law’s efficacy. Perhaps judicial restraint, rather than activism, might have taken privacy law in a more coherent direction.
Conclusion
Legal formalism and realism sit on a spectrum whose extremes are best avoided. The confusion surrounding the law of privacy, for example, is a product of a loose approach to the development of the law that completely abandoned formalist ideas.
Pure formalism cannot be reconciled with the common law, but neither does it have to be. It is the common law’s greatest strength that it is innately malleable and uncodified. This malleability must be tempered by the formal concepts of certainty and predictability. Disregarding the vital balancing exercise that is inherent in considering both formalist and realist ideals would curtail the effectiveness of tort law in protecting the interests of its addressees, either by stopping it from developing in line with social and economic needs or by mutilating its coherence and predictability.
[1] Henry WR Wade, ‘The Basis of Legal Sovereignty’ (1955) 13 Cambridge Law Journal 172.
[2] Frederick Schauer, ‘Formalism’ (1988) 97 Yale Law Journal 509, 509-510.
[3] Richard Posner, ‘Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution’ (1986) 37 Case Western Resesrve Law Review 179, 181.
[4] Schauer (n 2) 510.
[5] Edmund W Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (Cambridge University Press 2005) 75.
[6] Oliver Wendell Holmes Jr., ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 458.
[7] ibid 464-465.
[8] Posner (n 3) 181. Though not a realist himself, Posner’s recognition of the relevance of public policy affirms the foundational realist contention that the law is very much susceptible to non-legal factors.
[9] [1987] UKHL 12, [1989] AC 53.
[10] ibid 63D.
[11] [1990] 2 AC 605.
[12] [1990] 1 AC 831.
[13] Caparo (n 11) 654.
[14] [2011] EWCA Civ 693, [2011] 1 WLR 3212.
[15] Thomas DC Bennett, ‘Privacy and incrementalism’, in Koltay and Wragg (eds), Comparative Privacy and Defamation (Edward Elgar 2020).
[16] Lesley Dolding and Richard Mullender, ‘Tort Law, Incrementalism, and the House of Lords’ (1996) 47 NILQ 12, 13.
[17] ibid 15, citing Lord Wilberforce in Anns v London Borough of Merton [1977] UKHL 4, [1978] AC 728, 751G.
[18] ibid 16, citing Brennan J in Sutherland Shire Council v Heyman [1985] 60 ALR 1, 43-44.
[19] Richard Mullender, ‘English Negligence Law as a Human Practice’ (2009) 21(3) Law & Literature 321, 326.
[20] Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736.
[21] ibid 747 at [29].
[22] Bennett (n 15).
[23] ibid.
[24] Kaye v Robertson and Sport Newspapers Ltd [1990] EWCA Civ 21.
[25] Kirsty Horsey and Erika Rackley, Tort Law (6th edn, Oxford University Press 2019) 451.
[26] Coco v AN Clark (Engineers) Ltd (HC) [1968] FSR 415, 419-421.
[27] [1988] (HC) 2 WLR 1280.
[28] Section 6 of the Human Rights Act 1998 requires that ‘public authorities’ act in ways which are compatible with the ECHR rights. This definition includes ‘courts and tribunals’ under Section 6(3), requiring the courts to hand down judgments which vindicate claimants’ fundamental rights.
[29] [2005] EWCA Civ 595, [2006] QB 125.
[30] [2004] UKHL 22, [2004] 2 AC 457.
[31] ibid 464-465, at [14].
[32] ibid.
[33] ibid 496, at [137].
[34] Thomas DC Bennett, ‘Judicial Activism and the Nature of “Misuse of Private Information”’ (2018) 23(2) Communications Law 74, 82, citing Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] Fam 116 and Murray v Express Newspapers Ltd [2007] EWHC 1908 (Ch), [2007] EMLR 22, among others.
[35] [2015] EWCA Civ 311, [2016] QB 1003.
[36] ibid 1021, at [21].
[37] Bennett (n 34).
[38] ibid 84.
[39] Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406, 422 at [33].
Ritchard Ninov
LLB (City Law School) ’21, LLM (LSE) ’22
insightful analysis on the judiciary’s struggle to balance formalist and realist approaches in privacy law. A well-articulated critique of legal interpretations!